New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Lucian T. Pera
Editor-in-Chief, TBALink

STATE OF TENNESSEE v. DON EDWARD CARTER
Court:TSC
Attorneys:
C. Michael Robbins, Memphis, Tennessee, Gary F. Antrican, District
Public Defender, Somerville, Tennessee, and Jeanie Kaess, Assistant
Public Defender, Somerville, Tennessee, for the appellant, Don Edward
Carter.
Michael E. Moore, Solicitor General, Marvin E. Clements, Jr.,
Assistant Attorney General, and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.
Judge: BIRCH
First Paragraph:
This appeal arises from the incarceration of an individual for over 72
hours without his having been brought before a magistrate and without
probable cause having been judicially determined. Don Edward Carter,
the defendant, was arrested without a warrant and held for more than
72 hours. At no time during this period was he taken before a
magistrate. He confessed while in custody. Following his indictment
upon two counts of first degree murder (premeditated), Carter moved to
suppress the confession on constitutional grounds and on the ground
that Tenn. R. Crim. P. 5(a) had been violated. The trial court
refused to suppress the confession, and it was admitted into evidence.
The jury convicted Carter of both counts, and he was sentenced to
concurrent terms of life imprisonment. On appeal, the Court of
Criminal Appeals affirmed the trial court's ruling admitting the
confession into evidence, the convictions, and the sentences. The
issue before this Court is the admissibility of Carter's confession.
Although we conclude that Carter's rights under the Fourth Amendment
to the United States Constitution and Tenn. R. Crim. P. 5(a) were
violated, we have determined that his confession was properly admitted
into evidence. Accordingly, the judgment of the trial court and the
Court of Criminal Appeals is affirmed.
http://www.tba.org/tba_files/TSC/carterd.wpd
STATE OF TENNESSEE v. BARRY WINFRED RITCHIE
Court:TSC
Attorneys:
Michael E. Moore, Solicitor General; Gordon W. Smith, Associate
Solicitor General; and Elizabeth B. Marney, Assistant Attorney
General, Nashville, Tennessee, for the appellant, State of Tennessee.
Larry G. Roddy, Sale Creek, Tennessee, for appellee, Barry Winfred
Ritchie.
Judge: BARKER
First Paragraph:
We granted this appeal to determine whether a petitioner seeking a
writ of habeas corpus is entitled to an evidentiary hearing to
establish that the convicting court lacked territorial jurisdiction,
when the record of the proceedings does not show that the court lacked
such jurisdiction. We hold that because the scope of the writ of
habeas corpus in Tennessee does not permit inquiry into facts outside
of the original trial record, the appellee is not entitled to a
hearing to introduce extrinsic evidence collaterally attacking the
jurisdiction of the convicting court. Further, because we cannot find
any clear and indisputable proof in the record that the Hamilton
County Criminal Court lacked territorial jurisdiction to convict and
sentence the appellee, we reverse the judgment of the Court of
Criminal Appeals and dismiss the appellee's petition for the writ of
habeas corpus.
http://www.tba.org/tba_files/TSC/RitchieBW.wpdSUPREME COURT OF TENNESSEE
STATE LIST FOR PERMISSION TO APPEAL
Court:TSC - Rules
http://www.tba.org/tba_files/TSC_Rules/CERTLIST_0417.wpdLARRY CHERRY, et al. v. JOHN E. WILLIAMS, JR., et al.
Court:TCA
Attorneys:
John T. Milburn Rogers, Greeneville, Tennessee, for the appellants,
Larry Cherry and Money Management Services, Inc.
Winston S. Evans, Nashville, Tennessee, for the appellee, John E.
Williams, Jr.
Thomas C. Corts, Nashville, Tennessee, for the appellee, L. Anthony
Deas.
Judge: KOCH
First Paragraph:
This appeal involves a dispute between a client and his two lawyers
regarding their recommendations against accepting a plaintiff's
settlement offer in a chancery court proceeding. After the chancellor
and this court awarded his adversary damages far in excess of the
settlement offers, the client filed a legal malpractice action against
his lawyers in the Circuit Court for Davidson County. The two lawyers
moved to dismiss the complaint based on the one-year statute of
limitations, and the trial court, treating the motion as one for
summary judgment, dismissed the complaint. The client asserts on this
appeal that the limitations period did not begin to run until this
court affirmed the judgment in the underlying case and that the
running of the statute of limitations should have been tolled because
the lawyers fraudulently concealed his cause of action against them
while they continued to represent him. We have determined that the
complaint is time barred and, therefore, affirm the summary judgment.
http://www.tba.org/tba_files/TCA/Cherryl.wpd
GLENDA JENNINGS, et vir KEITH JENNINGS
VS.
KENNETH CASE, M.D.; and CASE MEDICAL CLINIC, P.C.;
P.C.; W. DAVID STEWART, M.D.; and ASSOCIATED SURGEONS
Court:TCA
Attorneys:
ROBERT J. SHOCKEY
2400 Crestmoor Road, Suite 307
Nashville, Tennessee 37215
JAMES E. MOFFITT
1013 Vista Circle
Franklin, Tennessee 37067
ATTORNEYS FOR PLAINTIFFS/APPELLANTS
ROSE P. CANTRELL PHILLIP L. NORTH
GEORGE A. DEAN North, Pursell & Ramos
Parker, Lawrence, Cantrell & Dean Nations Bank Plaza
200 Fourth Avenue North Suite 1850
5th Floor, Noel Place Nashville, Tennessee 37219-1783
Nashville, Tennessee 37219
ATTORNEYS FOR DEFENDANTS/APPELLEES
Judge: CAIN
First Paragraph:
This is a medical malpractice action in which the trial court granted
summary judgment to both defendant physicians. The plaintiff has
appealed arguing that there existed genuine issues of material fact.
We agree with the plaintiff and reverse the decision of the trial
court.
http://www.tba.org/tba_files/TCA/Jengsgle.wpd
MARY JANE LUSK, v. JESSE W. ENGLETT, VIRGINIA P. ENGLETT, AND JOSEPH
D. ENGLETT.
Court:TCA
Attorneys:
David D. Peluso, Hohenwald, Tennessee for the Defendants-Appellants.
Douglas Thompson Bates, III, Centerville, Tennessee for
Plaintiff-Appellee.
Judge: FRANKS
First Paragraph:
In this boundary dispute, the Chancellor declared the boundary between
the parties based upon the parties' deeds, and rejected defendants'
contention that an old fence row established the boundary. Defendant
has appealed.
http://www.tba.org/tba_files/TCA/luskm.wpdSTATE OF TENNESSEE, v. FREDERICK JAMES BRUSH
Court:TCCA
Attorneys:
Ernest W. Williams, Franklin, Tennessee, for the appellant, Frederick
James Brush.
Paul G. Summers, Attorney General and Reporter, Michael Moore,
Solicitor General, Elizabeth T. Ryan, Assistant Attorney General, Dan
Mitchum Alsobrooks, District Attorney General, and Robert Wilson,
Assistant District Attorney General, for the appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
Following denial of a motion to suppress, the appellant Frederick
James Brush, entered a nolo contendere plea in the Stewart County
Circuit Court to one count of aggravated sexual battery and received a
sentence of eight years incarceration. Pursuant to Tenn. R. App. P.
3(b) and Tenn. R. Crim. P. 37(b)(2)(i), the appellant explicitly
reserved the right to challenge the admissibility of evidence seized
pursuant to a search of his residence. Specifically, he contends that
the affidavit supporting issuance of the search warrant is
insufficient to establish probable cause because it fails to establish
the reliability of the three year old victim informant. As we find
the issue not dispositive, we are without jurisdiction to entertain
the appeal. Accordingly, the appeal is dismissed and the case
remanded to the trial court.
http://www.tba.org/tba_files/TCCA/BrushFJ.wpd
STATE OF TENNESSEE v. DARRELL DODSON
Court:TCCA
Attorneys:
John Drake, Murfreesboro, Tennessee, for the appellant, Darrell
Dodson.
Paul G. Summers, Attorney General and Reporter, Lucian D. Geise,
Assistant Attorney General, Bill Gibson, District Attorney General,
and William M. Locke, Assistant District Attorney General, for the
appellee, State of Tennessee.
Judge: WELLES
First Paragraph:
Following a jury trial, the Defendant was convicted of aggravated
rape. He now appeals as of right from his conviction, raising the
following six issues for our review: (1) Whether the evidence is
sufficient to support his convictions; (2) Whether the trial court
erred in failing to require the State to elect between the numerous
alleged incidents of rape presented in the proof, thus depriving the
Defendant of a unanimous jury verdict; (3) Whether the trial court
erred in failing to grant an acquittal based upon insufficient showing
of venue; (4) Whether the trial court erred in excluding the testimony
of the counselor who would have corroborated the impotence of the
Defendant based upon a statement of the Defendant made three months
prior to the alleged rape; (5) Whether the conviction should be
reversed based upon improper and prejudicial statements by the
prosecutor; and (6) Whether the prejudicial effect of the testimony of
Cheryl Carter outweighed the relevance of such testimony and whether
such testimony was inadmissible under Tenn. R. Crim. P. 404(b). The
State concedes that the trial court erred in failing to require the
State to elect between the multiple incidents of rape presented in the
proof, thereby depriving the Defendant of a unanimous jury verdict.
Because we agree that the trial judge so erred, we reverse the
Defendant's conviction and remand for a new trial. The remainder of
the Defendant's issues are without merit.
http://www.tba.org/tba_files/TCCA/dodsond.wpd
STATE OF TENNESSEE v. VICTORIA S. GALINDO
Court:TCCA
Attorneys:
John H. Henderson, Public Defender, and C. Diane Crosier, Assistant
Public Defender, Franklin, Tennessee, for the appellant, Victoria S.
Galindo.
Paul G. Summers, Attorney General and Reporter, Marvin E. Clements,
Jr., Assistant Attorney General, Ronald L. Davis, District Attorney
General, and Sharon E. Tyler, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
In this appeal the defendant, Victoria S. Galindo, challenges the
length and manner of service of the sentences imposed by the trial
court. Defendant pled guilty to three counts of forgery, Class E
felonies. Defendant was sentenced to three consecutive two-year terms
for an effective sentence of six years, with service to begin at the
conclusion of a ten-month federal sentence. We affirm the judgment of
the trial court.
http://www.tba.org/tba_files/TCCA/GalindoV2.wpd
STATE OF TENNESSEE v. ROBERT ALLEN LEGGETT
Court:TCCA
Attorneys:
James Bryan Lewis and Joshua G. Strickland, Nashville, Tennessee, for
the appellant, Robert Allen Leggett.
Paul G. Summers, Attorney General and Reporter, David H. Findley,
Assistant Attorney General, Victor S. Johnson, III, District Attorney
General, and John C. Zimmermann, Assistant District Attorney General,
for the appellee, State of Tennessee.
Judge: RILEY
First Paragraph:
In this appeal the defendant, Robert Allen Leggett, challenges the
sentence imposed by the trial court. Defendant pled guilty to one
count of conspiracy to sell over seventy pounds of marijuana and one
count of money laundering, both Class B felonies. Defendant was
sentenced to two eleven year sentences to run concurrently, and fined
$10,000.00 for each count. We affirm the judgment of the trial court.
http://www.tba.org/tba_files/TCCA/Leggett.wpd
STATE OF TENNESSEE v. ALTON DARNELL YOUNG
Court:TCCA
Attorneys:
Paul G. Summers, Attorney General; Todd R. Kelley, Assistant Attorney
General; Victor S. Johnson, III, District Attorney General; and Terry
James Haycox, Assistant District Attorney, for appellant, State of
Tennessee.
Richard McGee, Nashville, Tennessee, for appellee, Alton Darnell
Young.
Judge: TIPTON
First Paragraph:
In this case charging the defendant with felonious possession of a
handgun, the state appeals from the trial court's suppression of the
weapon as evidence. The state argues that the arresting officer had
reasonable suspicion to stop the defendant. The defendant argues that
the officer lacked probable cause. Although the trial court did not
make specific findings of fact, the record indicates that the trial
court determined that regardless of whether the officer had probable
cause or reasonable suspicion to stop the defendant, the officer could
not lawfully then seize the gun. At the suppression hearing, the
officer demonstrated how the gun was lying under a rag in the
defendant's vehicle. No explanation of this demonstration appears in
the record. Because the trial court viewed the demonstration
firsthand, we accredit the trial court's determination and affirm its
suppression of the weapon as evidence.
http://www.tba.org/tba_files/TCCA/Youngad.wpd

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